So the principles and rules of the common law, as they were reduced to practice, became in their application the means of injustice in cases where special equitable circumstanc es existed, of which the judge could not take cognizance because of the precise nature of its titles and rights, the inflexible character of its principles, and the technicality of its pleadings and practice. And in a manner somewhat analogous to the Roman mode of modification, in order to remedy such hard ships, the prerogative of the king or the au thority of the great council was exercised in ancient times to procure a more equitable measure of justice in the particular case, which was accomplished through the court of chancery.
This was followed by the "invention" of the writ of subpoena by means of which the chancery assumed, upon a complaint made directly to that court, to require the attend ance of the adverse party, to answer to such matters as should be objected against him. Notwithstanding the complaints of the com mons, from time to time, that the course of proceeding in chancery "was not according to the course of the common law, but the practice of the holy church," the king sus tained the authority of the chancellor, the right to issue the writ was recognized and regulated by statute, and other statutes were passed conferring jurisdiction where it had not been taken before. In this way, without any compilation of a code, a system of equi table jurisprudence was established in the court of chancery, enlarging from time to time ; the decisions of the court furnishing an exposition of its principles and of their application. It is said that the jurisdiction was greatly enlarged under the administra tion of Cardinal Wolsey, in the time of Hen ry VIII. The courts of equity also began to act in personam and to enjoin plaintiffs in common-law courts from prosecuting inequi table suits. A controversy took place be tween Lord Chancellor Ellesmere and Lord Coke, Chief Justice of the King's Bench, in the time of James I., respecting the right of the chancellor to interfere with any of the proceedings and judgments of the courts of law. The king sustained the chancellor ; and from that time the jurisdiction then claimed has been maintained. See The Earl of Ox ford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 601; Bisph. Eq. § 407 ; 1 Poll. & Maitl. 172 ; 1 Hallam, Const. Hist. 472; CANCELLARIIIS.
It is from the study of these decisions and the commentaries upon them that we are enabled to determine, with a greater or less degree of certainty, the time when and the grounds upon which jurisdiction was granted or was taken in particular classes of cases, and the principles upon which it was admin istered. And it is occasionally of importance
to attend to this ; because we shall see that, chancery having once obtained jurisdiction, that jurisdiction continues until expressly taken away, notwithstanding the intervention of such changes in common-law practice and rules as, if they had been made earlier, would have rendered the exercise of juris diction in equity incompatible with the prin ciples upon which it is founded.
A brief sketch of some of the principal points in the origin and history of the court of chancery may serve to show that much of its jurisdiction exists independently of any statute, and is founded upon an assumption of a power to do equity, having its first in ception in the prerogative of the king, and his commands to do justice in individual cas es, extending itself through the action of the chancellor, to the issue of a writ of summons to appear in his court without any special authority for that purpose, and, upon the return of the subpoena, tor the reception of a complaint, to a requirement upon the party summoned to make answer to that complaint, and then to .a hearing and decree, or judg ment, upon the merits of the matters in con troversy, according to the rules of equity and good conscience.
It appears as a noticeable fact that the jurisdiction of the chancery proceeded orig inally from and was sustained by successive kings of England against the repeated remon strances of the commons, who were for ad hering to the common law ; though not, per haps, approving of all its rigors, as equity had been to some extent acknowledged as a rule of decision in the common-law courts.
This opposition of the commons may have been owing in part to the fact that the chan cellor was in those days usually an ec clesiastic, and to the existing antipathy among the masses of the people to almost ev erything Roman.
The master of the rolls, who for a long period was a judicial officer of the court of chancery, second only to the chancellor, was originally a clerk or keeper of the rolls or records, but seems to have acquired his judi cial authority from being at times directed by the king to take cognizance of and de termine matters submitted to him.